Re James Clyde Reilly
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 13 April 2010 |
| Neutral Citation | [2010] NIQB 46 |
| Docket Number | QBD; TRE78222 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 13 April 2010 |
[2010] NIQB 46
High Court (NI)
Judge: Treacy J
QBD; TRE78222
Issue: Whether fairness and/or Art 5(4) ECHR required an oral hearing before the Parole Board in relation to an automatic life sentence prisoner seeking release.
Facts: JCR received an automatic life sentence for robbery, attempted robbery and possession of an imitation firearm; the tariff of 6 years and 8 months expired in September 2009. In April 2009, he received a copy of a dossier of reports prepared for the Parole Board review of his case, none of which recommended his release or transfer to open conditions; in June 2009, he was notified that the Board had decided not to direct his release or recommend his transfer to open conditions, and informed that he could appeal and seek an oral hearing. JCR sought an oral hearing, noting that he had not made representations on the reports before the decision based on the paper review, setting out the facts behind various disciplinary adjudications referred to in the reports, contesting the results of various drugs tests in light of prescribed medications, and setting out his wish to submit that he had made sufficient progress to be recommended for a move to open conditions; he also noted that he had never had an oral hearing before the Board, but that such hearings were necessary for fairness in light of what was at stake. In July 2009, the Board declined to have an oral hearing and confirmed its earlier decision, commenting that offending behaviour JCR had to do meant that he was unsuitable for release or transfer to open conditions. He was informed by the Secretary of State that the next review was set for December 2010, the date reflecting the work he had to undertake.
In judicial review proceedings it was argued that the failure to have an oral hearing breached common law fairness and/or Art 5(4) ECHR, and that the rules permitting the Board to proceed without an oral hearing should be interpreted to comply with Art 5(4) or declared incompatible with it. The Board contested the application.
[1] By this judicial review the applicant challenges a decision of the Parole Board dated 20 July 2009 refusing him release on licence from his life sentence without giving him an oral hearing.
[2] There are 2 limbs to the applicant's challenge. The first is that the decision is in breach of Art 5(4) ECHR/Common Law because an oral hearing is required where it is requested by a life sentence prisoner seeking release on licence. The second limb is that an oral hearing was required in the particular circumstances of his case. Whereas the first limb involves a challenge to the Parole Board Rules 2004 (as amended) the second limb involves no challenge to the validity of the Rules.
[3] The applicant commenced judicial review proceedings in September 2009. The grounds upon which relief is sought are as follows:
‘(a) The impugned decision was contrary to common law and unfair in that it denied the Applicant an oral hearing in a case where:
(i) Facts which may have affected the outcome were in dispute; and
(ii) Explanations and mitigations of the Applicant's behaviour were available which may have affected the outcome;
(iii) The denial of an oral hearing did not provide the Applicant the benefit of a procedure which fairly reflected on the facts of his particular case the importance of what was at stake for him.
(b) The impugned decision was contrary to Art 5(4) ECHR in that in a case involving matters of such crucial importance as the deprivation of liberty, and where a substantial term of imprisonment was at stake, and in a case where questions arose which involved an assessment of the Applicant's character, mental state, characteristics pertaining to his personality and level of maturity, Art 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses; the impugned decision denied the Applicant such a procedure and thus violated his rights under Art 5(4) ECHR.
(c) Where the Applicant's rights under Art 5(4) ECHR have been violated damages should be awarded to afford him just satisfaction.
(d) Rule 10(a), 10(b) and 11 of the Parole Board (Amendment) Rules 2009, and rr12(1), 12(2) and 13 of the Parole Board Rules 2004 (as so amended) are unlawful and incompatible with the Convention Rights of the Applicant in that they permit the question of his release on licence, as a life sentence prisoner, to be determined by a parole board without an oral hearing in circumstances in which he has requested such an oral hearing; the said Rules should either be declared unlawful and struck down, or interpreted in a manner that achieves compatibility under Section 3 of the Human Rights Act 1998.”
[4] The applicant is James Clyde Reilly aged 41 (dob: 17 April 1968). On 28 March 2002 he was remanded in custody in respect of offences of robbery, attempted robbery and possession of an imitation firearm. He was subsequently sentenced on 20 January 2003 whereby he received an automatic life sentence with a tariff of 6 years and 8 months. His tariff expiry date is calculated as being 20 September 2009.
[5] In or about April 2009 the applicant was copied a dossier which was sent by the Lifer Management Unit at HMP Maghaberry (the LMU) to the Parole Board. This dossier contained various documents and reports including reports from the Governor at HMP Maghaberry, Mr Gallagher a Prison Psychologist, the Probation Board for Northern Ireland, and Dunlewey Substance Abuse Centre. No submissions were made by the applicant in response to the dossier.
[6] In or about June 2009 the applicant received an undated document entitled “Intensive Case Management (ICM) Paper Decision Form (2009 Version 1)' which was sub-titled “Prison No GJ8240 Tariff Expiry ALP Review; Notification of paper decision’ which stated inter alia that:
‘The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). This is a decision taken on the papers and the full decision is attached.
You should read the decision very carefully and you are advised to discuss this with your legal representative as soon as you can You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. You have 4 weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal.
An appeal will be considered by the Board but may not necessarily result in an oral hearing being granted. It is important that you give full reasons for why you believe that an oral hearing is necessary, what witnesses might be needed, and what they are likely to add to what they have written in reports. You do not have a right to an oral hearing and need to say why it is necessary in your case…
If we do not hear from you within the 28 days the paper decision will be taken as final, and the Secretary of State will set a date for your next review.”
[7] This covering letter was signed by the “Oral Hearings Team, Parole Board’ and contained forms whereby the applicant could signify acceptance of this decision or not and a section where he was asked to “set out your reasons for requesting an oral hearing’. The letter further contained a section representing the ICM member's decision as follows:
1. Decision of the Panel
The Panel considered this case on the papers and concluded that the matter should not proceed to an oral hearing. This decision was based on the following reasons:
2. Evidence considered
The dossier supplied to the panel comprised 88 pages.
The dossier did not contain any representations from or on behalf of Mr Reilly and none were submitted separately.
3. Analysis of offending
In January 2003 at age 35, Mr Reilly was sentenced to life imprisonment for robbery, attempted robbery and possession of an imitation firearm with intent. The tariff was set at 6 years and 8 months which will expire in September 2009.
Mr Reilly was involved in the robbery of 2 post offices with 2 co-defendants. They entered the first post office, brandishing a weapon at members of the public but left empty handed. They were wearing balaclavas at the time. A short while later there was a second attack, on another post office from which they stole just over £2,000 and attempted to escape on foot but were arrested. Mr Reilly had brandished a weapon which had the appearance of a sawn off shotgun but was actually 2 metal pipes taped together.
Mr Reilly has a record of previous offending from age 16. He has almost 20 convictions for more than 30 offences. As a teenager he committed offences of theft from vehicles, AOABH, burglary, criminal damage and possession of drugs. In 1998 he was sentenced to 30 months for robbery and in 1992 was sentenced to 6 years imprisonment for an offence of robbery involving an imitation firearm, He received an 18 month consecutive sentence in 1994 for an affray committed whilst in custody. The Probation Board report indicates that the PNC printout may not include full details of Mr Reilly's history of convictions in Northern Ireland in particular, convictions for attempted robbery in 1999 for which he received custody probation orders, comprising 30 months imprisonment and 30 months probation.
4. Factors which increase or decrease risk of re-offending and harm
Risk factors have been identified as including use of weapons, instrumental violence, threats of violence, criminal lifestyle, lack of consequential thinking and drug misuse.
There is also concern that Mr Reilly lacks victim empathy. He is said to show remorse on the surface but to lack a full understanding about the effects of his actions, which he minimises.
5. Evidence of change during sentence
This is Mr...
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